Watching the Republican-led U.S. Senate cave to our lawless president, Donald Trump, and assure him acquittal in his impeachment trial, was worse than watching a slow-moving train wreck. It was like watching a slow-moving suicide.
The suicide of the rule of law — a sine qua non of our American experiment.
After weeks of fact-finding by the House impeachment inquiry, and after days of opening arguments and Senators’ questioning in the Senate trial — all focused on Trump’s extortionate “favor” put to a foreign power (Ukraine): the quid pro quo of dirt on a re-election rival for badly-needed military aid — the question became: Would the Senate defy Trump and vote to call for witnesses and documents — both of which Trump debarred in the House inquiry — in order to conduct a proper trial?
Additionally, Trump’s former national security advisor John Bolton was waving his arms wildly, declaring his readiness to testify about Trump’s “pressure campaign” on Ukraine — a first-hand witness who could satisfy the Republicans’ dismissal of the Democrats’ case as all based on hearsay. (Bolton’s forthcoming book is titled “The Room Where It Happened.”) That Bolton refused to testify earlier in the House, even threatening to sue, the Democrats could let pass, if he testified in the Senate.
But no, the Republicans could not allow it. With the exception of two profiles in courage — Maine’s Susan Collins and Utah’s Mitt Romney — the Senate voted against ensuring a proper trial, falling in party line: 51 to 49. “World’s greatest deliberative body”? Not.
This is far more than lamentation about partisan loss; this is foreboding. Foreboding about institutional collapse, for one. With the Senate caving to our lawless president, how can the Senate cite Trump’s forthcoming lawlessness (and it will come), when it just surrendered, without much of a defense, its principal check — the impeachment option? What happens now to Senate oversight, or to its investigative function, or even to its legitimacy as a branch co-equal to the executive?
But what really is foreboding is this: Our lawless president, once “acquitted” (the scare-quotes indicate faux-acquittal), can and will operate without any guardrails at all — legal, institutional, moral. We are now at the mercy of Trump’s gut, his whims, his spite and his furies. We truly are in uncharted waters, without map or compass.
And giving cover was the astonishing testimony of former Harvard law professor Alan Dershowitz, who made the claim, on the floor of the very Senate he was about to desecrate, that a president who acts in what he believes is in the national interest, including in pursuit of his own re-election, cannot be impeached for it. Jaws on the left across the land dropped, though not apparently on the right. Dershowitz now claims he was misinterpreted, but the clip that has gone viral is clear in its license. Republican senators reportedly leaned into that license. Watch out now for a turbo-charged Trump.
Our peril at this turn is best captured by Adam Schiff, Democratic Congressman from California and lead manager of the House’s case to the Senate. Eloquent throughout, Schiff was perhaps most eloquent in terming these uncharted waters into which we are thrust as “the normalization of lawlessness.” This phraseology — this new reality — was echoed by another manager, New York Congressman Hakeem Jeffries. Both men seemed on the verge of tears. While the so-called “conservatives” were freely pitching their Constitutional rights over the side, the Democrats were desperately trying to retrieve them; they were, in fact, doing a conservative’s job — that is, conserve a component part of the America idea: the rule of law.
What was so exasperating in watching the Republicans’ performance: They never really contested the matter of Trump’s lawlessness, but instead banged on (and on and on) about process. For example, they harangued Democrats for not subpoenaing for their House inquiry the witnesses they called for in the Senate trial — never acknowledging that the President debarred his Administration from answering any House subpoenas or cooperating with the House inquiry. As the old legal maxim goes: If you have the law, argue the law; if you don’t have the law, bang the table (or bang on about process.) But now: Can we really say we have the Law at all….?
The closest the Republicans came to acknowledging Trump’s lawlessness was to call his Ukraine gambit “inappropriate,” as retiring Senator Lamar Alexander put it in his statement to the press. This tut-tut will not keep Trump from inviting other foreign interference in our elections (China, Iran; back to you, Russia) or strong-arming another foreign power for a “favor.” Also “inappropriate” was Trump’s defiance in answering any subpoena: Is such defiance now the norm for presidential behavior? Do Republicans not see the anarchy — lawlessness normalized — they unleashed?
Throughout the whole process, Trump’s lawyers insisted the Democrats’ charge of “abuse of power” was “too vague” a standard by which to impeach, forgetting that such standard was the great “lesson learned” from the case of (Republican) president Richard Nixon. As historian Timothy Naftali says, “The Republicans have embraced a theory that permits future abuses of power.” If Republicans were not so bound in their Faustian bargain with this lawless president — a bond now welded in the furnace of impeachment — perhaps they could see their error, their complicity….?
As it is, as the legal scholars at Lawfare note, Trump’s lawyers made “the authoritarian argument for acquittal.” Think about that: the authoritarian argument for acquittal. We have seen the apotheosis (or have we?) of what David Leonhardt of The New York Times astutely pegged just six months after Trump’s inauguration, in a column titled “The Lawless Presidency.” Lawless = authoritarian.
Trump’s lawyers also went on and on about the “bad” precedent set by this Democratic-led impeachment. But consider the horrendous precedent set by this lawless president, soon to be acquitted, on how future presidents and holders of high office exercise power. Already historians are weighing in on the ramifications.
Contrary to Republican claims, not all Democrats called for impeachment. I argued for censure (also here). But House speaker Nancy Pelosi was right when she said, “The times have found us”: When Trump strong-armed Ukraine with his quid pro quo, Democrats could not let such lawlessness stand; not to have acted would have been Constitutional malpractice. (Kudos to all House managers who prosecuted the case: In addition to Schiff and Jeffries, the team included Jason Crow, Val Demings, Sylvia Garcia, Zoe Lofgren, and Jerrold Nadler.)
Is there life after suicide — can rule of law be resuscitated as a precept of American life? It can, but it will take fierce effort and it will require taking the long view. For now, we wait to hear the rationales of individual Republican senators, to be delivered on the Senate floor, explaining their decisions not to impeach. (Later they can take themselves into Gethsemane and have it out with their consciences.) And Democrats in the House can still consider censure, can still subpoena Bolton.
Going forward — the direction Americans always want to go — we all can continue to prosecute the case for the rule of law. In such quest, common ground could be achieved between Democrats and those Republicans who abhor what their party has become. (I am glad my Republican parents are not here to see the absolute degradation of the GOP.) And, certainly, restoring rule of law — and making a big issue of Trump’s lawlessness — should be central in Campaign 2020.
And, something that should sober up any Republican jubilation at Trump’s faux-acquittal: John and Jane Q. Public will continue pondering rule of law and fairness. They will wonder: How can you have a fair trial if you don’t permit witnesses or documents? Isn’t it a rigged trial if acquittal is a foregone conclusion? And how can Trump blow off a subpoena, but if I did it, I’d get hauled off to jail?
In November, it is imperative that Americans elect a President who honors the law.